57 F.4th 1085
9th Cir.2023Background:
- Milan and Diana Kiser owned a mixed-use property leased to commercial tenants; tenant David Taylor operated the Gour Maine Lobster and placed a "Lobster Parking" sign near an assigned stall.
- The lot lacked a van-accessible parking space with an adjacent access aisle; appellant Chris Langer is a paraplegic who uses a side-ramp van and could not safely park or enter the businesses.
- Langer visited the site (Sept. 2017), photographed barriers, and sued under Title III of the ADA and California's Unruh Act; the Kisers counterclaimed for trespass.
- At bench trial the district court found Langer "reluctantly" had standing but credited lease terms and held the lot was not a place of public accommodation; it also made adverse credibility findings based on Langer’s large ADA-litigation history.
- The Ninth Circuit panel reversed: held Langer had Article III standing (tester/serial-litigant status irrelevant), the lot was a "facility" of the Lobster Shop (thus covered by Title III), directed judgment for Langer, vacated costs, and vacated the district court’s trespass adjudication; Judge Collins dissented, arguing the credibility finding defeated standing.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing for injunctive ADA relief | Langer was "currently deterred" and intended to return once parking was fixed (also acts as a tester) | Langer lacked a credible intent to return; serial litigator history undercuts standing | Ninth Circuit: Langer has standing—tester status and prior suits are not disqualifying; district court erred relying on litigation history for credibility |
| Use of plaintiff’s litigation history in credibility/standing analysis | Prior ADA suits are not dispositive; motive irrelevant under CREEC (tester standing allowed) | District court relied on large number of prior suits to find Langer not credible and not intending to return | Ninth Circuit: District court erred to rely on that history alone; courts may not reject intent to return merely because plaintiff is a serial litigant |
| Scope of "place of public accommodation"—is the parking lot covered? | Lot is a "facility" of the Lobster Shop and, being used by customers, must provide accessible parking under Title III/ADAAG | Lease terms assigned a spot to tenant; landlord argues lot was not open to public and thus not a public accommodation | Ninth Circuit: Parking lot is a facility (per 28 C.F.R. §36.104) of the Lobster Shop; actual usage (customers parked there) controls and establishes coverage |
| Anti‑SLAPP / trespass counterclaim | Langer: approaching property to document ADA violations is petitioning activity; trespass claim is retaliatory SLAPP | Kisers: had plausible trespass claim; factual questions existed pretrial | Ninth Circuit: Denial of anti‑SLAPP motion was proper (Langer satisfied threshold; Kisers showed reasonable probability on trespass); but district court erred by adjudicating trespass on merits after declining supplemental jurisdiction (that holding vacated) |
Key Cases Cited
- Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133 (9th Cir. 2002) (articulated deterrent‑effect doctrine for ADA standing)
- D'Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031 (9th Cir. 2008) (warning against adverse credibility findings based solely on ADA litigation history)
- Doran v. 7‑Eleven, Inc., 524 F.3d 1034 (9th Cir. 2008) (distinguishing facilities open to public from those closed to public under Title III)
- Chapman v. Pier 1 (U.S.) Imports Inc., 631 F.3d 939 (9th Cir. 2011) (en banc) (clarified standing: current deterrence or intent to return)
- Civil Rights Educ. & Enf't Ctr. v. Hospitality Props. Tr., 867 F.3d 1093 (9th Cir. 2017) (held tester standing permissible under Title III and motive irrelevant)
- Havens Realty Corp. v. Coleman, 455 U.S. 363 (U.S. 1982) (tester standing recognized under federal civil‑rights statutes)
- Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000) (landlords cannot contract away ADA obligations of facilities open to public)
- Jankey v. Twentieth Century Fox Film Corp., 212 F.3d 1159 (9th Cir. 2000) (facilities not "in fact" open to public are outside Title III)
- Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (U.S. 1998) (federal courts must resolve Article III jurisdictional issues before merits)